Oracle Blog

Notes from a General Counsel

Thursday Jun 18, 2009

I shake my head whenever I read articles like this that suggest that the legal services profession will continue unchanged. It feels like so much "whistling past the graveyard." The reality is that we are in the early stages of a seismic shift in the traditional cost and delivery model for legal services. I see it every day in my interactions with the law firms that support us and in my discussions with peers at other companies. This change is the result of three major factors: the current economic downturn, the rise of alternative legal service providers and the lifestyle choices of the newest members of our profession.

The global recession is causing all commercial enterprises to scrutinize their cost structures. As part of this, in-house legal departments are expecting their legal service providers to provide similar efficiencies. Recently, we asked one of our partners, Howrey, to represent us in some corporate litigation. As part of this engagement, we had an initial meeting with two partners from the firm, Robert Gooding and David Lisi, to discuss case strategy and also the anticipated cost of defense. To my surprise, Bob and his partner proactively offered a variety of cost structures (including flat fee and quarterly fee caps) as alternatives to the billable hour. They were also happy to work with the legal staffing vendor we use for litigation support and offered other suggestions for lowering our litigation costs. I can tell you that this is a conversation that would never have occurred with any firm five years ago. At least, not without significant prodding on our part.

The availability of alternative legal service providers in lower cost geographies is also increasing competition in the legal services market. In part, this is due to the almost frictionless ability to transfer legal work around the world via the Internet. The result is that legal service providers in lower cost locations are able to use price to more effectively compete for work. Over the last few years, we've seen this in the way important, but more routine and repeatable work, is being handled in lower cost areas in the U.S. and other countries. As professional licensing regimes are harmonized, this trend will continue and, as these lower cost providers gain greater experience and training, they will move "up the stack" providing increasingly more valuable and higher margin services.

The career perspective of the newest generation of attorneys is an additional factor in driving these changes. They desire a different lifestyle than what was offered in the past. I know this from first hand experience. As I'm writing this, I'm sitting in a conference room with a number of our law school summer interns. They work differently than I did when I was in law school - collaboratively, in communal spaces, streaming music, while interacting with peers via Twitter, Facebook and other social networking sites. To many of them, flexibility, mobility, a collaborative environment and interesting work are paramount - and not always what law firms can currently offer.

Interestingly, I had lunch yesterday with the managing partner of one of the larger firms that support our company. (I'd disclose the name, but I feel that much of what we discussed was in confidence.) It's clear that he understands where our profession is heading. His firm is automating routine work like the creation of incorporation documents; increasing it's use of cost accountants to better understand his firm's cost structure enabling it to more effectively price work; and encouraging clients to use flat fee and other alternative billing models. His firm is also actively exploring ways in which they can better meet the career desires of their newest generation of attorneys. Some of the things that are being considered include abandonment of the traditional partnership track structure (based in part on graduating class year); training partners to be more effective managers; and creating a career path for those attorneys who are more interested in lifestyle balance than a corner office. At the end of our discussion, he expressed certainty about the changes to come, but with some wistfulness for the past.

Change is always difficult. But, all of us in the legal profession - whether in-house or firm - need to embrace it. For as Benjamin Franklin once said: "When you're finished changing, you're finished.

For those of you that are interested in being part of the conversation, here's a good place to begin.

Wednesday May 27, 2009

Earlier this month, the Bay Area recognized "Bike to Work Day". Many companies participated, including Sun which has a fanatical base of employees who incorporate bicycling into their lives. Each year we have individual employees and teams participating in the AIDS ride and riding in fund raisers to fight MS. In the past, I used to commute by bike to our Santa Clara campus. It was a refreshing way to start the work day and an even better way to shed the stress before returning home. Regretfully, the distance to Sun's Menlo Park campus (where I work now) has undermined my ability to commute by bike - unless I can find someone to volunteer as a "domestique".

This doesn't mean that I have forgone my love of the pedals. In fact, these days I do more riding than ever. (This weekend's descent down Montebello Road , accompanied by a Coldplay soundtrack, was almost transcendental.) I've also enjoyed getting more involved in organized rides and other interesting biking activities. The latest is San Jose Bike Party. Held late in the evening on the third Friday of each month, it's a viral event bringing together riders from throughout the South Bay and Peninsula. This month's ride included nearly 1,000 riders of all levels with many in costume. My favorite was the tandem pulling a couch - the cycling equivalent of an RV? The experience of riding down a major city thoroughfare at midnight with hundreds of other riders was both celebratory and eerie. But, it provided an appealing glimpse of life without the automobile.

Monday May 18, 2009

I've had a number of people inquire when I will write about this. At this point, all I can say is that it has been a fascinating experience (and an exhausting number of months). For those of you who want to know more, here's where you can find the preliminary proxy. I will write more as we get further along in the process, but for now....

Lost in all the excitement about the Oracle announcement was some wonderful news relating to a litigation against Sun.

Almost three years ago, a company named Trilogy (now Versata Software) filed suit against Sun in the Eastern District of Texas. For a number of years, Sun had licensed from Trilogy what is known as configurator software - a program that enables a company to track components and build hardware configurations. (I own a Mini. If you go to the Mini website you can assemble online the type of vehicle you want, including all components and options. This is an example of configurator software.)

Sun paid many millions of dollar to Trilogy for the use of the software and additional support, but it never worked to our satisfaction. In 2002, we made the decision to look for an alternative and adopted an Oracle platform with additional features created by Sun. Needless to say, Trilogy was not happy with the loss of business and chose to sue Sun alleging patent infringement, copyright misappropriation and breach of contract, among other claims. As we proceeded with discovery, it was clear that Trilogy was extremely confident in their position as reflected in their unwillingness to engage in any meaningful settlement discussions.

For us, the case was a difficult one to assess. Although we were certain we should prevail, we knew that it would be challenging for a jury to understand the complex technology and intellectual property laws presented in the case. And, the jury would be one located in Marshall, Texas, which has the reputation of being very favorable for plaintiffs.

On April 16th, we started trial confident in our position, but concerned about our ability to communicate it in a very short period to a jury with almost no technical experience. Facing us was Trilogy's damage claim of $49m - with the possibility of treble damages, attorneys fees and interest.

After six days of testimony and evidence, the jury returned its verdict - finding completely in favor of Sun on all claims. The jury even determined that Trilogy's patents were invalid, which should be wonderful news to others facing suit by Trilogy.

I've been asked how we were able to achieve such a overwhelming result. In short, the answer is "talent". This isn't meant as braggadocio, but rather a reflection of a team of skilled and focused attorneys led by Sun's Chief IP Counsel, Noreen Krall, and Jeff Randall of Skadden, Arps. Throughout the litigation, they continued to adapt to the challenges of new issues and facts, but always maintained conviction in their view that Sun should prevail. To both of them and the rest of the team - a big "thanks".

Monday Mar 23, 2009

-I enjoyed my first ride in a Tesla (thanks, Steve). It's a beautiful looking vehicle with performance like this. Once the price drops and they deliver a sedan model, I will be ready to plug one into the home solar system.

-I also had my deposition taken in the NetApp litigation. Evidently, the folks at NetApp are not big fans of my blog. (I'm trying not to take it personally.)

-Jonathan has written an interesting series of posts about the future of enterprise computing (and Sun's direction as well). Well worth a read.

-A few weeks ago, I had the opportunity to speak at an IP conference at Howard University School of Law. Although I wasn't able to attend the entire session, I did get the chance to listen to Victoria Hall's presentation about Jacobsen v. Katzer. At issue in that case (in which Ms. Hall represents the plaintiff) is whether the terms of an open source license constitute a "covenant" or "condition". If the former, then the defendant's actions would be viewed as a breach of contract for which the remedy would be damages - difficult to prove in the context of an open source license. If the latter, the plaintiff would be entitled to statutory damages and injunctive relief for copyright infringement. The case was initially decided in favor of the plaintiff, but is currently on appeal. It's obviously a case of interest to many in the open source community.

-The debate over FAS 5 continues. Sun along with 134 other companies has joined the ACC in objecting to proposed amendments to FAS 5. You can find out more here.

Tuesday Feb 10, 2009

We recently held one of our regular department update calls that included as a guest speaker the Lead Technologist responsible for driving flash memory across Sun's product portfolio. Truly fascinating stuff. In his presentation, he illustrated how storage technology has not kept pace with advances in servers (especially multi-core systems). The result is that today's systems spend significant time "waiting" for data to be accessed from storage and insuring that it is not altered or corrupted.

Although flash technology has been around for years ( think of your cellphone or camera), it has only now developed to the point that it can be used in servers. The result is a system that is faster, but uses significantly less energy. (There are also no moving parts as with traditional disk drives.)

But it is not just advances in flash technology that enable this shift in server design. It also requires an operating system that is able to recognize and manage different types of storage (e.g. flash, tape, disk). That's the beauty of the Solaris operating system with its ZFS file system - that, and the fact that it's open source.

The presentation caused me to think about a human analog to the same problem of data flow. One that was right before me - our conference call. It's purpose is to provide a quick and effective flow of information (i.e. data) to employees located in differing time zones around the world. We rely on technology - in our case, a live conference call using a WebEx interface - but technology alone is not the answer. At some point it comes down to changing human behavior. As a test, I periodically listen to the recorded version of our calls so that I can have the same experience as an export person in Germany or an attorney in China. It can be painful to listen. Some calls don't begin promptly, people speak over one another, there are distracting noises and unidentified speakers. The result is that those dialing in are likely to tune out or worse yet, hang up and that important information is never received.

So, while we are solving the problem of data flow in the technology world, the human element requires much more continuous work. In that vein, I found this to be a pretty good start. It's excerpted (with thanks) from Management for the Rest of Us.

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Conference Call Tips

Do get comfortable with the fact you will be talking in front of a group and receiving no visual cues or feedback.

Do use the right phone in a quiet, undisturbed room.

Don’t use cell phones or phones that pick up background noise. Calling from an open plan office is the equivalent of having a conversation in a nightclub. If you really can’t find a quiet room, use the mute button until you are required to speak.

Do learn to use the mute button and other phone technology to avoid a Homer Simpson style "Doh” moment. Your intelligent contributions mean nothing if no one can hear them.

Do set up the meeting in advance and communicate the dial in number, passcodes and other information. “Spring forward, fall back” is something to keep in mind for your timezone crossing colleagues. Don’t work out time differences on your fingers – check on the internet or even phone a colleague in that country and ask what time it is!

Do start the meeting absolutely on time; don’t reward latecomers’ bad behaviour by waiting for them. Take a role call at the start of the meeting, highlighting the missing attendees. Go on, get tough, people will love you for it!

Do treat the conference call as if it were a meeting. You know the routine; prepare and circulate an agenda, take notes ya-de-ya-de-ya.

Do get each caller to say hello and introduce themselves. Even though you may never meet in person, it’s a good relationship builder and gets the shyest of people to at least say their name.

Don’t assume everyone recognises your voice. Unless you are dis-respecting the boss and want to stay incognito, say your name before you speak. This is particularly important for the poor soul taking meeting notes.

Do make use of guest speakers. Invite a special or important guest and get them to say a few words at the beginning of the meeting. No one will know they slipped out after five minutes and you’ll get the benefit of undivided attention and best behaviour.

Don’t allow the topic to wander. Be an iron fist in a velvet glove – polite but firm if people talk too long or over each other. If your callers are at home sitting in their pyjamas nursing a hot chocolate, be considerate that all they want is to go to bed.

Do ask for input by using a person’s name. People will pay more attention to avoid the embarrassment of needing the question repeated.

Monday Jan 26, 2009

Our legal and compliance team was fortunate to begin the New Year with a visit from the Higher Keys, an a cappella group consisting of eighteen amazingly gifted students from Brown University. While the break area of the Sun Microsystems Legal Department may not be the preferred venue for most of their performances, I doubt they have had a more appreciative audience.

I'm sorry those of you outside the Bay Area could not join us for the performance. But, here's a chance to enjoy it by video.

You're likely wondering how we managed to get such a group of accomplished entertainers to perform for us. Let's just say it helps when one of them has a very proud father who works in the Sun Legal Department.

Wednesday Jan 07, 2009

I'm sure many of you spent the month of December looking for something significant for that special GC in your life. Well, you can forget about the wine, chocolate and fruit baskets. Last week, the justices of the U.S. Court of Appeals for the Federal Circuit provided the perfect gift for GCs of companies facing increased litigation with patent trolls. It came in the form of a decision in the case of In Re TS Tech USA. (A PDF of the ruling is here.) This decision increases the likelihood that courts will grant requests for a change in venue in well known "plaintiff friendly" jurisdictions.

It's a nice way to begin the year. Although, on reflection, a good bottle of wine is always appreciated.

Thursday Dec 11, 2008

I travel a fair amount. And, I'm an insomniac. It's not an ideal combination. Often, I find myself in a hotel room in another country still awake in the early a.m. having finished all the books I've carried with me. Jet lag, work stress and unfamiliar surroundings are not conducive to a good night's sleep. (Bill Murray nailed the feeling in "Lost in Translation".)

For a time, I would spend those nocturnal hours watching YouTube videos or randomly searching websites for something of interest. The results were usually little more captivating than the rerun of McCloud (dubbed in German) that I watched during my last trip to Munich. As Ian Hurt once said, "There's a statistical theory that if you gave a million monkeys typewriters and set them to work, they'd eventually come up with the complete works of Shakespeare. Thanks to the Internet, we now know this isn't true."

Recently, I installed StumbleUpon and it's greatly improved my web-surfing experience. It's a free download that employs a personal preference system for websites similar to what NetFlix uses for DVDs and Amazon for books. It's both effective and addictive.

Here are some examples of what I "stumbled upon" during a recent trip:

Wednesday Nov 12, 2008

Earlier this week, we held our annual intern "meet and greet" at Sun's campus in Menlo Park. It was a chance for local law students to connect with attorneys in our organization to learn about internship opportunities and, more generally, what it's like to work here. We had a great turnout with more than fifty students from a number of regional law schools. All of them were bright, energetic, interesting - and interested.

At the beginning of the event, I spoke for a few minutes about my career and the value of internships. I pointed out that few people are fortunate enough to identify early in life what their "perfect job" will be. Instead, for most of us, career paths are really nothing more than a process of elimination. You explore, try new opportunities and leave others until (hopefully) you find the right role. For me that journey has been a meandering path through several law firms, two companies (one of them, Sun - twice) and multiple areas of legal practice.

I arrived home last evening and with a glass of wine in hand, sat down and read our town's local newspaper. On the second page, I found an article noting that Pat O'Laughlin, our former mayor, had passed away as the result of a rare disease called spinal arachnoiditis. Besides serving as mayor, Pat was also a very well known civil litigator in the San Jose area. Just about every local judge and attorney knew Pat and admired him for his intellect and tenacity in the courtroom. But it was Pat's wit and frequently displayed humor that were his hallmark.

In 1984, it was Pat who gave me my start as an attorney. At that time, I had just graduated from law school and passed the bar exam. I had little concept of what it meant to be a litigator, but Pat took a chance and hired me. Over the following three years, he trained me and gave me increasingly more complex cases to handle. He clearly had far more confidence in my abilities than I did at that early stage.

It has been more than fifteen years since I last saw him. Ultimately, I realized that litigation was not what I wanted for my professional career and I left to a position with another firm. And from there... like I said, a meandering path to where I am today.

Lao-tzu famously said, "A journey begins with a single step." In many careers that first step is the most important. But, equally important is having a person who helps you take it.

Friday Nov 07, 2008

Earnings announcement, board meetings, stockholder meeting and the continued melt down of global economic markets. All in all, it's been a stressful few weeks. So, when a few friends offered the chance for a weekend of camping and hiking in Yosemite Valley, I happily accepted.

Yosemite Valley is always wonderful. But at this time of year, it is at its most beautiful. The leaves of the black oaks have turned shades varying from crimson to mustard and color the air with every breeze. In the background, the majestic icons of the valley - El Cap, Half Dome, Glacier Point and Royal Arches, all watch silently. I'm still astounded to meet residents of California who have never visited this sublime geologic wonder.

The hike itself was grueling. There was no trail to follow and we had to move at a good pace to avoid navigating in the dark - or worse yet, being included in the next edition of this.

Our starting point was Olmstead Point off of Tioga Road. From there we descended (and more than occasionally - stumbled) down Tenaya Canyon to the valley floor. Along the more than ten mile route we discovered the engine of a plane that had crashed in the late 1950s; had an encounter (thankfully, a friendly one) with a large black bear; enjoyed the adrenaline of a few rappels and the refreshment of a chilly swim in the Tenaya river. In this environment, it is impossible to think about work. Or, the economy.

Now, at the office a week later, my legs remain in pain and the blisters on my feet have not yet healed. But each time I experience a moment of stress, I reach down and touch my still aching legs. When I do, I'm transported back to Yosemite and find a moment of repose.